Unenforceable HOA Rules In Florida
Homeowners’ associations (HOAs) are organizations of people who agree to be bound by a set of rules governing both the properties and their residents. Most HOAs enjoy a high level of cooperation from their residents, but sometimes, rules are suggested and enacted that cannot, as written, be successfully enforced. While homeowners can bring these to their HOA’s attention, it is generally the responsibility of the board to ensure that the bylaws and covenants are both valid and enforceable.
Recorded With The County
HOAs generally have both covenants (fully referred to as conditions, covenants & restrictions, or CC&Rs) and bylaws, both of which must be enforceable and valid under state and federal law. In general, the CC&Rs cover the broad regulations, such as what one can and cannot do on one’s own parcel, while the bylaws are more narrowly focused and more centered on procedures. For example, the bylaws will govern issues like how the board is elected and how board meetings are conducted, while the CC&Rs govern specifics like the approved colors one may paint their home.
For an individual HOA, both the CC&Rs and the bylaws must be recorded with the county where the association is located, and both are legally binding. However, HOAs will also often have a set of less “official” rules, which until recently did not have to be recorded (though the relevant law was amended recently to mandate that rules and regulations do now have to be recorded with the county). These rules are the ones mandating things like payment of rent, keeping noise levels to a minimum, and cleaning up pet waste outside your home.
Enforcement Must Be Consistent
While the majority of proposed HOA regulations become valid simply because they are recorded with the relevant authorities, there are certain types of covenants or regulations that wind up unenforceable because they either do not comply with Florida (or federal) law, or because they were deficient in procedure. For example, a restrictive covenant banning people of color from the HOA would be unenforceable because it is against both state and federal law, but a covenant banning a certain age group from one’s HOA is generally enforceable if drafted appropriately.
It is important for board members in particular to be aware that even otherwise valid and enforceable covenants can be rendered unenforceable if the enforcement is inconsistent. Florida law imposes a fiduciary duty on board members which requires them to act in the best interests of the community, and failure to consistently enforce rules and regulations is not upholding that duty. If the lack of enforcement is particularly egregious, a homeowner can bring suit against the board as a whole, particularly if a covenant has been selectively enforced against them.
Contact A Tampa Homeowners Association Attorney
The cornerstone of a working HOA is having enforceable and logical regulations that apply to everyone. Failure to do so can create a highly negative environment for members and for the board as a whole. If you have questions or concerns about a potentially unenforceable rule in your HOA documents, Tampa HOA & condo association attorney Alicia Seward and the Seward Law Office may be able to help get them managed. We represent both individual owners and community association boards, and are happy to try and assist you with your case. Contact our Tampa offices today to schedule a consultation.
Resource:
flsenate.gov/Laws/Statutes/2011/718.111
